An old constitutional fight and Judge Brett Kavanaugh

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FILE – In this Sept. 5, 2018, file photo, Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill in Washington. Combat won out over caution. White House aides and congressional allies worked all week to keep President Donald Trump from unloading on the woman who has accused Kavanaugh of sexual misconduct. (AP Photo/Manuel Balce Ceneta)

The vicious fight over the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court was foreshadowed in 1947, when Justice Felix Frankfurter raised a concern about the “merely subjective test” the high court was using to decide which state laws were going to be thrown out as violations of the U.S. Constitution’s Bill of Rights.

The case was Adamson v. California, and it related to the Fifth Amendment right to remain silent. The court ruled that this particular federal constitutional right didn’t apply in a state court in California.

It wasn’t until 1964, in Malloy v. Hogan, that the justices decided to add the right against self-incrimination to the list of rights that also apply in state courts. The famous “Miranda warnings” decision came two years later.

This is part of what has been called the “living Constitution,” the idea that the Supreme Court should update the Constitution through interpretation instead of waiting for people to get around to amending it.

While speaking at an American Enterprise Institute forum in 2006, Justice Antonin Scalia was asked a question about the consequences of abandoning the “living Constitution” idea and returning to “strict construction,” a constitutional interpretation that sticks with the text and the original understanding of the words.

Scalia said he believed texts should be interpreted neither strictly nor loosely but “reasonably” and that he would leave in place most of the decisions that had been rendered under an “evolving” Constitution. “For example,” he said, “perhaps the most — the biggest stretch that the court has made was interpreting the Fourteenth Amendment to apply the Bill of Rights to the states. Nobody ever thought the Bill of Rights applied to the states.

It begins ‘Congress shall make no law.’ And when I was in law school, it was still a controversial proposition whether the Fourteenth Amendment incorporated the Bill of Rights and spat them out upon the states. But, you know, we’ve been doing this for 50 years now, it’s not a problem, I just take the same rules that I apply to the Bill of Rights against the federal government, and I apply it against the states. It is manageable,” he said.

Judge for yourself how manageable it is.

The “incorporation doctrine,” as it has been called, relies on tests with names like “strict scrutiny” to determine whether a state law will be allowed to stand. Judges have to weigh whether a state has a “compelling” reason for a law that violates a right the Supreme Court has declared to be “fundamental.”

Exactly what makes a right “fundamental” and what makes a reason “compelling?”

It’s completely subjective.

For example, in 1991, the justices considered whether the dancers at the Kitty Kat Lounge in South Bend, Indiana, had a fundamental First Amendment right to perform totally nude, and if Indiana had a compelling reason for a public indecency law that required them to wear pasties and G-strings.

Chief Justice William Rehnquist said nude dancing “is expressive conduct within the outer perimeters of the First Amendment,” but Justice David Souter noted that “pasties and a G-string moderate the expression to some degree.” After more of this kind of discussion, the justices upheld the indecency law by a vote of five to four.

The outer perimeters of the Bill of Rights came into play when the justices decided the case of Griswold v. Connecticut in 1965. The Supreme Court threw out a Connecticut law that banned the use of birth control, saying it violated “the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights.”

The Griswold case marked the first time the Supreme Court had ever identified a right of privacy in the Constitution. The landmark Roe v. Wade decision, relying on the right of privacy to strike down laws banning abortion, followed in 1973.

Gradually, the Supreme Court gave itself the power to control state laws on almost every subject — not only abortion but everything from panhandling to police searches — power that once belonged to the elected representatives of the people of each state.

That turned Senate confirmation hearings into the last opportunity for the people of the United States, through their elected representatives, to have any say at all about what their laws will be on critically important issues.

State laws can be changed after every election. The Supreme Court’s word can endure for a lifetime.

Susan Shelley is a columnist and editorial board member for the Southern California News Group. Susan@SusanShelley.com. Twitter: @Susan_Shelley.